National Tax Service Review and Transfer 2011-0183 (Law No. 26, 2011)

It is difficult to recognize that farmland has been self-covered for not less than eight years.

In full view of the fact that a third party received direct payments compensating for rice income, etc., and the tax authority prepared a certificate that the third party cultivated his/her farmland at the time of investigation, and the consultation about compensation for farming losses at the time of expropriation with a third party and the fact that the third party actually cultivated the farmland during the period of farmland ownership is insufficient to recognize

Article 69 of the Restriction of Special Taxation Act

2011Guhap4529 Disposition of revocation of imposition of capital gains tax

Park XX

Head of the Gu Tax Office

May 23, 2012

June 27, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on June 17, 2011 is revoked.

1. Details of the disposition;

A. On July 9, 199, the Plaintiff acquired and owned 00-0 m39 m2 (hereinafter referred to as “the farmland of this case”) located in the area of 4th industrial complex of the U.S., and transferred the farmland of this case to the Korea Water Resources Corporation in accordance with the procedure for public site consultation on December 31, 2009, and the Plaintiff directly cultivated the farmland of this case for eight years or more, thereby making a preliminary return on the transfer income tax by deeming that the farmland of this case constitutes the reduction or exemption of transfer income tax.

B. On June 15, 201, the Defendant issued a correction and notification of KRW 000 (including special rural development tax) for the transfer income tax belonging to 2009 to the Plaintiff on the ground that the Plaintiff cannot be deemed to have voluntarily cultivated the instant farmland for at least eight years (hereinafter “instant disposition”).

C. On July 22, 2011, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but was dismissed on August 26, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, Eul evidence Nos. 1 and 8, the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

① Since the Plaintiff directly cultivated the instant farmland for not less than eight years from the date of acquisition of the instant farmland on July 9, 1999 to the date of transfer on December 31, 2009, it is subject to reduction or exemption of capital gains tax under Article 69 of the Restriction of Special Taxation Act. Even if such is not, the Plaintiff directly cultivated the instant farmland for not less than three years, and acquired and cultivated the instant farmland on February 16, 2010 by acquiring an OO Ri 001,904С-dong, Busan Metropolitan City, Chungcheongnam-si, Incheon Metropolitan City on February 16, 2010, capital gains tax shall be reduced or exempted pursuant to Article 70 of the Restriction of Special Taxation Act.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Determination as to the plaintiff's above 2.1

(1) The principle of strict interpretation derived from the principle of no taxation without law is applicable not only to the cases that meet the taxation requirements, but also to the cases that meet the requirements for non-taxation and tax reduction and exemption. As such, the expanded interpretation or analogical interpretation of the requirements for non-taxation or tax exemption and exemption as favorable to taxpayers without any justifiable reason leads to a result contrary to the principle of tax fairness, which is the basic ideology of the tax law (see, e.g., Supreme Court Decision 2005Da19163, May 25, 2006). Therefore, a person who asserts farmland is liable to prove the fact (see, e.g., Supreme Court Decision 92Nu1893, Jul. 13, 199

According to Article 69(1) of the former Restriction of Special Taxation Act (wholly amended by Act No. 924, Jan. 1, 2010; hereinafter referred to as the "former Restriction of Special Taxation Act") and Article 66(1)1 through 3 of the former Enforcement Decree of the Restriction of Special Taxation Act (wholly amended by Presidential Decree No. 21984, Jan. 7, 2010; hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act"), in order to be exempted from capital gains tax, a Si/Gun/Gu in which the relevant farmland is located, a Si/Gun/Gu in a Si/Gun/Gu adjacent to the relevant farmland, or an area within 20 km in a straight line from the relevant farmland and directly grow the relevant farmland.

(2) In light of the following circumstances, comprehensively considering the following circumstances, which are acknowledged by adding up the various descriptions of evidence Nos. 5, 6, 8 through 10-1 and 2 of evidence No. 3, evidence Nos. 2 through 7, evidence Nos. 9-2, 10, and 11, evidence Nos. 5, 6, and 8 through 10-1 and 2 of evidence Nos. 5, 6, and 8 through 10, it is insufficient to recognize that the Plaintiff directly cultivated the farmland of this case for the period during which the Plaintiff owned the farmland of this case. There is no other evidence to acknowledge this otherwise,

(A) From 2005 to 2009, Park Dong-dong, the Plaintiff, a son, received direct payments compensating for rice income from the instant farmland. From March 8, 2011 to 2009, Park Dong-dong, the Plaintiff stated that the Defendant’s public official cultivated the instant farmland from 2002 to 2009, sent rice 80 km to the Plaintiff’s mother as the land, and prepared a confirmation document (No. 4) with the same content. ② Even on May 7, 2012 during the instant lawsuit, the aforementioned confirmation document was all in fact, and on the basis of the expropriation compensation in 2009, the Plaintiff was able to fill up a certificate of confirmation (No. 10) that the Plaintiff was her Plaintiff on September 1, 201, and the Plaintiff was her public official from April 1, 201 to October 1, 201 to 10, 2002 to 19B.

(B) In consultation with the Korea Water Resources Corporation in accordance with the procedure for land acquisition, the Plaintiff and ParkA agreed that the instant farmland shall receive KRW 000 (60%) and KRW 00 (4) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, pursuant to Article 48(4) of the "Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, as the Plaintiff and ParkA actually cultivated the said farmland (No. 1).

(C) From October 12, 1999 to 00-00, the Plaintiff’s wife is operating the so-called so-called “K” as from October 12, 1999. On April 1, 201, the Plaintiff stated that the Defendant’s public official obtained a mid-term license in 1979, and worked in HH construction, RR construction, etc., and that the Defendant is driving the so-called so-called K’s circulatory machine registered in the name of the wife from 199 to the date of 199.

(D) The Plaintiff’s domicile based on the Plaintiff’s resident registration refers to the Gu-U.S., Si-si, the domicile of the Plaintiff’s mother’s father-child from April 29, 199 to the date of XX. However, the Plaintiff’s wife and children’s domicile based on the Plaintiff’s resident registration refer to Daegu Northern-gu BBdong,CC Dong, and Ddong from 1984 to

B. Judgment on the Plaintiff’s assertion No. 2.2

According to Article 70 (1) of the Restriction of Special Taxation Act and Article 67 of the Enforcement Decree of the former Enforcement Decree of the Restriction of Special Taxation Act, a tax amount equivalent to 100/100 of capital gains tax shall be reduced for the land generated by replacing the land directly cultivated by a person who resides in an area within a Si/Gun/Gu where farmland is located or within a 20-meter radius from the farmland in a straight line as prescribed by Presidential Decree due to the necessity of cultivation.

However, since the plaintiff's direct cultivation of the farmland of this case is not recognized, the plaintiff's assertion is without merit without any further review.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.